STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

TERRIS ADAMS, Employee

WISCONSIN BELL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601167MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for two and a half years as a service technician for a telephone company. His last day of work was October 8, 2003 (week 41).

The employee did not work October 8, 2003 because he was incarcerated. He was incarcerated after he was accused of violating a restraining order. He contacted the employer to give notice of his absence and to ask for a leave of absence until the matter was resolved. The employer was unable to grant the request because the reason for the leave was incarceration. The employee was released from jail on December 21, 2003. He contacted the employer on December 22 and asked if he could be reinstated. The employer said there were no positions. The employee denied that he violated the restraining order and testified that the charge was dismissed and he was not convicted of any crime. The employer did not establish that the employee was at fault in his incarceration.

In cases where the commission has found misconduct based on incarceration, it was able to find affirmatively that the employee's failures to act caused a chain of events which created circumstances which made him unavailable for work and he was therefore the defaulting actor. Brian W. Schweikert v. Ganton Technologies Inc., U I Dec. Hearing no. 91606281 (LIRC Mar. 24, 1992); Love v. Emmpak Foods Inc, U I Dec. Hearing No. 99604845MW (LIRC Jan. 27, 2000).

The record in this case contains no evidence that the employee was guilty of violating the restraining order or creating a chain of events which led to his incarceration. The employee denies any fault. Therefore the record does not establish that the employee engaged in any intentional conduct detrimental to the employer's interests.

The commission therefore finds that in week 41 of 2003, the employee was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge as modified is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed September 14, 2004
adamste . urr : 178 : 1 MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission modified the decision to reflect its practice in similar cases. The commission considers that evaluating an employee's responsibility for his failure to appear at work is central to any decision involving incarceration. The failure of the employer to prove employee fault leaves the commission with no alternative but to find no misconduct, despite the fact that the employer suffered a hardship when the employee was unavailable for work. However, any misconduct finding must establish an employee's intent and responsibility for the conduct leading to the discharge and no employee fault was established here.

cc:
Wisconsin Bell, Inc. (Hoffman Estates, Illinois)
Sam Butler


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uploaded 2004/09/20